Moore v. Everitt

20 Pa. Super. 13 | Pa. Super. Ct. | 1902

Opinion by

William W. Porter, J.,

This is an action by a receiver of an insolvent Mutual Fire . Insurance Company to recover an assessment directed to be levied by the court of common pleas of Dauphin county. At the foundation of the action lies the plaintiff’s obligation to prove that the defendant was the holder of a policy in the company, liable for the assessment. The court below directed a verdict for the defendant, on the ground that the plaintiff had failed to fulfil this obligation. If the rulings excluding evidence were correct, no error was committed in directing a verdict. The plaintiff opened his case by calling the defendant as for cross-examination. The latter admitted that he made application for insurance in the now insolvent company, on April 22,1890. He denied explicitly that a policy of insurance was issued to him ; that he ever received, a policy of insurance ; that any one ever got one for him; and that he ever saw a policy issued in his name or issued to cover his property.

The first assignment of error is to the refusal of the court to permit the introduction of proof contained in a long offer involving many facts. While the offer as a whole was rejected, yet the trial judge stated that the plaintiff would be allowed to prove the alleged contract with the defendant and matters material to it, and postponed his rulings upon the several items contained in the offer until they should severally be presented. Without going into detail we think the rights of the plaintiff were not infringed upon by this ruling. The second assignment is based upon the refusal of the court to permit the plaintiff to ask a witness whether an application for insurance had been received from the defendant in the year 1890. - No injury followed this ruling, since the defendant had already admitted that he had made such an application. The third assignment alleges error in the ruling out by the court of the question to the plaintiff’s clerk, whether, pursuant to application, the company issued a policy to the defendant. The ruling was not reversible error. The offer was not to show the issuance of the policy as set forth in the statement of claim. It had already appeared in the trial, by offers of proof, that the original policy upon which the suit was based, was not to be offered, but that proof of the loss of the policy and of its contents was to be made. The trial judge was of opinion that the orderly conduct of the trial did not warrant the introduction of evidence under a question so general as that put; and that it was not approaching the proof of contents of the lost paper by proper method. It was an attempt to prove generally the issuance of a policy. Furthermore, the witness had said already, incidentally, that a policy had issued. The fourth assignment raises substantially the same question; and for the same reasons it is dismissed. The clerk of the plaintiff, when upon the stand, testified that she had in her own writing a copy of the written portion of the policy alleged to have been issued to the defendant. She was directed to give the source from which she derived the information embodied in the written portion of the policy which she alleged that she had in copy. This was forbidden by the • court below. If the whole policy had been proven and the provisions in writing, testified to by the witness, had been incorporated, the source from which the information was derived to make up the written portion, would have been unimportant. If the source of the information was the application referred to, the result might be to incorporate into the contract, when proven, a stipulation contained only in the application. It was not proven that the application was attached to the policy. Therefore, none of its provisions were admissible in evidence. For these reasons it is apparent that the court did not err in excluding the question. The fifth assignment is dismissed. The same witness, having testified that the copy of the written portion of the alleged policy was in fact a part of the daily reports furnished by her as clerk, the daily reports themselves were offered in evidence. These reports were not evidence to bind the defendant. They did not purport to contain a full copy of the alleged policy. The only matter recited in them pertinent to the question at issue had already been identified by the witness orally as a copy of a part of a written policy. The daily reports were properly rejected and the sixth assignment is dismissed. The court declined to permit the witness to answer the question, whether a policy “ No. 1230 ” was mailed to the defendant. The question was accompanied by no proof that if such a policy was mailed it contained the terms set out in the copy of the policy attached-to the statement of claim upon which the suit was brought; or that it contained a clause imposing liability upon the defendant for the assessment as claimed. We think the ruling complained of in the seventh assignment is, therefore, unobjectionable. The court further declined to permit the witness to testify that assessments had been paid by the defendant, or in his behalf, on “ Policy No. 1230.” Up to this point of the trial there had been no proper proof that the policy indicated had been issued to the defendant, or of the full contents of any policy, or that the policy upon which assessments were alleged to have been paid, created a legal liability on the part of the defendant to pay either the assessments paid, or the assessment claimed. The eighth assignment is overruled. Permission was refused by the court to show the contents of “ Policy No. 1230 ” as the contract between the parties. The offer made was not in terms to prove the contract pleaded, but only the contents of a paper alleged to have been lost. No sufficient proof of loss and search had been made to open the door to secondary proof. The primary proof was the policy sued upon. The defendant denied its issuance. The burden was upon the plaintiff to show its issuance, its loss, search for it and its terms. There was no absolute assertion in the evidence that the policy had been lost, or where it had been lost, or under what circumstances. The testimony of a witness that search had been made for it in the offices of the plaintiff company was inadequate. The alleged search was made the day previous to the trial. The witness was unable to tell how protracted or thorough a search was made, or whether it was in the morning or afternoon of the day before. It was shown that there were other persons than the witness in charge of the office. The secretary was said to be there every day. Neither he nor any other officer of the company was called to prove loss or search in connection with the policy. The trial court committed no error in excluding the testimony offered. The ninth assignment of error is dismissed.

. The plaintiff then offered his statement of claim in evidence to prove that the fact of issuance of the policy to the defendant therein asserted, was not denied by affidavit and was therefore admitted. This was rejected for the purpose suggested. The trial was had upon an amended statement of claim. To the first statement an affidavit of defense had been filed, somewhat in the nature of a demurrer. On this a rule for judgment was taken. The rule was discharged. A plea of non assumpsit was entered. The case was several times upon the trial list. The plaintiff then filed an amended statement. The court below refused to compel the defendant to file a second affidavit. The plaintiff then went to trial on the amended statement and plea. As the record shows, he knew that he would be required to prove his case as pleaded. The affidavit filed to the first statement could not be held to be an admission of facts subsequently set forth in the amended statement. We dismiss the tenth assignment.

The eleventh assignment is to the refusal of the court to permit the introduction in evidence of the record of the Dauphin county court directing an assessment to be made upon the holders of assessable policies. In the absence of proof that the defendant was the holder of such a policy, the introduction of the record could fix upon him no liability. Therefore, the rejection of the record was right, as was also, for the same reason, the rejection of the offer (twelfth assignment) to prove the assessment made by the receiver. The court directed a verdict for the defendant. This is complained of in the thirteenth assignment. The evidence admitted, being insufficient to support a verdict for the plaintiff, no other instruction by the trial court could be sustained.

The judgment is affirmed.